Kalapi my dear,
This is really a very interesting issue, and thanks for bringing me up to speed on this. I stand corrected insofar as a couple married in India can, it is now clear, be divorced in, say, Canada or the US. The Indian Supreme Court ruling of November 16, 2009 on the validity in India of a foreign divorce, which I have checked up, would also seem to have settled the matter finally,
But then, the law is never as simple as that, or what would the lawyers do for a living? When I dug a bit deeper, it seems that
even if the husband obtains divorce from, say, a Canadian, court the decree of divorce may not be valid in India if it is not in accordance with the provisions of section 13 of the Civil Procedure Code & principle of law formulated by the Courts in India. So, a divorce granted by US court or any other foreign court may be good for that particular country, but if that divorce is not valid from Indian point of view, the divorced person, whether an Indian or foreigner, won't be able to remarry on the basis of the decree of divorce in India. It he/she does so, he/she will face criminal charges of bigamy at least in India, if not in US or any other foreign country. This would of course be relevant only for NRIs maintaining strong links with India.
I have not as yet looked into the situation wrt other countries. But I have, in the course of my diplomatic career, heard and read of any number of divorce and child custody squabbles between spouses of different nationalities, one being American and the other not, mostly European, and it never seemed as easy as this.
The law is often an ass, but it does seem that in these kinds of cases, the US courts' attitude would affect the interests of vulnerable Indian women married to NRIs. This way, the husband could divorce her very easily, and perhaps even without her knowing about it, and ruin her life. This can emphatically NOT be done in India.
Then again, my dear, an annulment is quite different from a divorce, for it negates the marriage entirely and makes it as if it never was. The grounds for that could be a prior marriage that is still valid. Of course there would be major legal implications, for property and alimony claims. While researching this topic, I found out that, interestingly enough, a marriage annulled by, say, the Catholic Church on the basis of canon law would not be legally valid unless a specific annulment order from a court has also been obtained!
As for Ovi, I am sure she is a Canadian citizen, and she would have no problem shifting back there. If she got sole custody of the child, Arjun would just have to lump it. I suppose he would then remarry and have his own children. After all, he was ready to honour her decision about an abortion!
So she would be stuck with the baby she never wanted, except as a means for winning the love of her husband, which she now will not have. A truly ironic situation. I would feel sorry for the baby!I do not know how the property and linked claims would be handled in such a case.Even if a Canadian court gave Ovi a solid chunk of Arjun's property, the Indian court would not honour that as it would not be in accordance with Indian laws. Why, when I was first posted in Washington in the early 1980s, there were any number of cases of men who skipped to another State to take advantage of the more beneficial divorce laws there, and even escape alimomy payments altogether. That was because unlike in India, where there is only a single countrywide legal system, it is different for each US State, and for each Canadian province as well.
Sleep tight and get well soon,, My wrist is in bad shape with this orgy of posting too, and is clamouring loudly for a break!
Shyamala
Originally posted by: Kalapi
Shymala darling, I had to make this last post in spite of myself😃, before I go to sleep land. I don't think any more marriages done in India, needs a divorce in India, or for that matter, marriage done in any country can be annulled in any other country. I can right now think of 2 real life examples ' both were married in India (and btw, interestingly both were love marriages as well). And both settled in USA, and got a divorce in the USA. Not only so, in one of the divorces, the spouse who was living a separate life for awhile, got a divorce without letting the other spouse even know that she was divorcing him. In this case, the wife advertised in a local newspaper (Jewish newspaper to be exact, yes and these are Indian couples) that she was looking for him and then divorced him uncontested as he didn't response back to her in a timely fashion (although the truth is that the hubby could never have seen the advertisement because it was out of Chicago's local Jewish newspaper (he lived in the NE USA).
That is why I said Ovi should move to Canada and establish her residency there first, which I hardly believe could be hard, as she could be a Canadian for living there 18 yrs and must have taken citizenship of that country and then apply for a divorce. And Canadian law, well does favor the child more than anyone and Arjun would be at a hard spot. Ovi could easily get him where she wants him to be 😃 ' I have seen that too here in both cases.
Btw, one of this real divorce cases, the wife goes back to India and then applies another legal procedure on her divorce, and the Indian Court rejects her application saying it abides by the divorce decision of the US court.